Big Data in Criminal Justice – Few Chances and Serious Risks

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Description

Starting from the Foucauldian concept of the “regime of truth” in criminal justice this paper will present
findings of a case study analyzing a complex organized crime case in Germany were huge amounts of digital
data have been introduced into evidence. As findings show Big Data Evidence (BDE) are about to alter the
traditional way professionals in law enforcement and criminal justice act in the evidentiary process.
First, some light will be shed on the BDE challenges for the investigation and analysis of serious criminal cases
and possible shortcomings of training and practice of crime analysts in, e.g., Computer-Aided Qualitative Data
Analysis (CAQDAS) to reliably assess the probative value.
Second, the new situation for lawyers at trial will be considered. Most current lawyers (in Germany) have a
blind spot when it comes to empirical analysis of digital evidentiary mass data retrieved from ICT-devices or
collected by means of electronic surveillance. There is in particular no clear understanding regarding the way
how information is produced from these digital data, eventually forming evidentiary knowledge and needed to
apply substantive law in a credible manner.
Third, serious risks will be discussed which arise in light of BDE from the mismatch of criminal procedural
frameworks and practical requirements in the analysis by legal experts. Moreover, BDE tends to create what
data science calls “ambient intelligence” which jeopardizes basic principles of modern criminal law such as
“presumption of innocence”, “equality of arms” or “public trial” – if not handled properly at the levels of legal
education, judicial practice and law-making.
Finally, some suggestions should be offered on how to conceptualize truth-finding and BDE and how to limit
the risks for a fundamental human rights and rule of law centered approach in criminal justice.